8^5: 


-1. 


■ 


if.     , 


UNIVERSITY  OF  CALIFORNIA 
AT    LOS  ANGELES 


-  / 


62Ji/C5«S?/*SS}  HOUSE  OF  REPRESENTATIVES  ^No^Oo^ 


SPECIAL  MESSAGE 

OF  THE 

PRESIDENT  of  THE 
UNITED    STATES 


RETURNING  WITHOUT  APPROVAL 
HOUSE  JOINT  RESOLUTION  NO.  14 


-^ 


»      0«     >      » 


- 

August  15,  1911.— Referred  to  the  Committee  on  the  Territories 
and  ordered  to  be  printed 


WASHINGTON 

1911 


M 


>  •      • 

*     * 


•      -• 


SPECIAL  MESSAGE  OF  THE  PRESIDENT. 

To  the  House  of  Representatives : 

I  return  herewith,  without  my  approval,  House  joint  resolution 
[No.  14,  "To  admit  the  Territories  of  New  Mexico  and  Arizona  as 
iStates  into  the  Union  on  an  equal  footing  with  the  original  States." 

Congress,  by  an  enabling  act  approved  June  20,  1910,  provided  for 
the  calling  of  a  constitutional  convention  in  each  of  these  Territories, 
the  submission  of  the  constitution  proposed  by  the  convention  to  the 
electors  of  the  Territory,  the  approval  of  the  constitution  by  the 
President  and  Congress,  the  proclamation  of  the  fact  by  the  Presi- 
dent, and  the  election  of  State  officers.     Both  in  Arizona  and  New 
OxMexico,  conventions  have  been  held,  constitutions  adopted  and  rati- 
s?  fied  by  the  people  and  submitted  to  the  President  and  Congress.    I 
^  have  approved  the  constitution  of  New  Mexico,  and  so  did  the  House 
vof  Representatives  of  the  Sixty-first  Congress.     The  Senate,  however, 
failed  to  take  acticn  upon  it.    I  have  not  approved  the  Arizona  con- 
stitution, nor  have  the  two  Houses  of  Congress,  except  as  they  have 
•^c  done  so  by  the  joint  resolution  under  consideration.    The  resolution 
V  admits  both  Territories  to  statehood  with  their  constitutions,  on  con- 
^  dition  that  at  the  time  of  the  election  of  State  officers,  New  Mexico 
shall  submit  to  its  electors  an  amendment  to  its  new  constitution 
altering  and  modifying  its  provision  for  future  amendments,  and  on 
"»  the  further  condition  that  Arizona  shall  submit  to  its  electors,  at  the 
time  of  the  election  of  its  State  officers,  a  proposed  amendment  to  its 
k  constitution  by  which  judicial  officers  shall  be  excepted  from  the  sec- 
I    tion  permitting  a  recall  of  all  elective  officers. 

If  I  sign  this  joint  resolution,  I  do  not  see  how  I  can  escape  respon- 
sibility for  the  judicial  recall  of  the  Arizona  constitution.    The  joint 
resolution  admits  Arizona  with  the  judicial  recall,  but  requires  the 
^v  submission  of  the  question  of  its  wisdom  to  the  voters.     In  other 
(V-  words,  the  resolution  approves  the  admission  of  Arizona  with  the 
judicial  recall,  unless  the  voters  themselves  repudiate  it.    Under  the 

(1) 


2  SPECIAL   MESSAGE. 

Arizona  constitution  all  elective  officers,  and  this  includes  county  and 
ate  judges,  six  months  after  their  election,  are  subject  to  the  recall. 
It  is  initiated  by  a  petition  signed  by  electors  equal  to  25  per  cent  of 
tin-  total  number  of  rot  •  t  for  all  the  candidates  for  the  office  at 
the  previous  general  election.  Within  five  days  after  the  petition  is 
filed,  the  officer  may  resign.  Whether  he  does  or  not,  an  election 
ues  in  which  his  name,  if  he  dues  not  resign,  is  placed  on  the 
ballot  with  that  of  all  other  candidates.  The  petitioners  may  print 
on  the  official  ballot  200  words  -how  ing  theit  reasons  for  recalling  the 
officer,  and  he  is  permitted  t<>  make  defense  in  the  same  place  in  200 
words.  If  the  incumbent  receives  the  highest  number  of  the  votes,  he 
continues  in  his  office;  if  not,  he  is  removed  from  office  and  is  suc- 
!  by  the  candidate  who  does  receive  the  highest  number. 
This  provision  of  the  Arizona  constitution,  in  its  application  to 
count}'  and  Stale  judges,  seems  to  me  so  pernicious  in  its  effect,  so 
destructive  of  independence  in  the  judiciary,  so  likely  to  subject  the 
rights  of  the  individual  to  the  possible  tyranny  of  a  popular  majority, 
and.  therefore,  to  be  so  injurious  to  the  cause  of  free  government  that 
I  must  disapprove  a  constitution  containing  it.  I  am  not  now  en- 
■_red  in  performing  the  office  given  me  in  the  enabling  act  already 
referred  to,  approved  June  20,  1910,  which  was  that  of  approving  the 
constitutions  ratified  by  the  peoples  of  the  Territories.  It  may  be 
argued  from  the  text  of  that  act  that  in  giving  or  withholding  the 
approval  under  the  act,  my  only  dvty  is  to  examine  the  pro- 
posed constitution,  and  if  I  find  nothing  in  it  inconsistent  with 
the  Federal  Constitution,  the  principles  of  the  Declaration  of 
Independence,  or  the  enabling  act,  to  register  my  approval. 
But  now  I  am  discharging  my  constitutional  function  in  respect 
to  the  enactment  of  laws,  and  my  discretion  is  equal  to  that  of  the 
Houses  of  Congress.  I  must  therefore  withhold  my  approval  from 
this  resolution  if  in  fact  I  do  not  approve  it  as  a  matter  of  govern- 
mental  policy*  ( )f  course,  a  mere  difference  of  opinion  as  to  the  wis- 
dom  <>f  detail-  in  a  State  constitution  ought  not  to  lead  me  to  set  up 
my  opinion  against  that  of  the  people  of  the  Territory/7  It  is  to  be 
their  government,  and  while  the  power  of  Congress  to  withhold  or 
grant  statehood  is  absolute,  the  people  about  to  constitute  a  State 
should  generally  know  better  the  kind  of  government  and  constitu- 
tion suited  to  their  needs  than  Congress  or  the  Executive.     But  when 


SPECIAL.  MESSAGE.  3 

such  a  constitution  contains  something  so  destructive  of  free  govern- 
ment as  the  judicial  recall,  it  should  be  disapproved. 

A  government  is  for  the  benefit  of  all  the  people.  "We  believe  that 
this  benefit  is  best  accomplished  by  popular  government,  because  in 
the  long  run  each  class  of  individuals  is  apt  to  secure  better  provision 
for  themselves  through  their  own  voice  in  government  than  through 
the  altruistic  interest  of  others,  however  intelligent  or  philanthropic. 
v>(  The  wisdom  Of  ages  has  taught  that  no  government  can  exist  except 
in  accordance  with  laws  and  unless  the  people  under  it  either  obey 
the  laws  voluntarily  or  are  made  to  obey  them.  In  a  popular  gov- 
ernment the  laws  are  made  by  the  people — not  by  all  the  people — 
but  by  those  supposed  and  declared  to  be  competent  for  the  purpose, 
as  males  over  21  years  of  age,  and  not  by  all  of  these — but  by  a 
majority  of  them  only.  /Now,  as  the  government  is  for  all  the 
people,  and  is  not  solely  for  a  majority  of  them,  the  majority 
in  exercising  control  either  directly  or  through  its  agents 
is  bound  to  exercise  the  power  for  the  benefit  of  the  minority  as  well 
as  the  majority.  But  all  have  recognized  that  the  majority  of  a  peo- 
ple, unrestrained  by  law,  when  aroused  and  without  the  sobering 
effect  cf  deliberation  and  discussion,  may  do  injustice  to  the  minority 
or  to  the  individual  when  the  selfish  interest  of  the  majority  prompts. 
Hence  arises  the  necessity  for  a  constitution  by  which  the  will  of 
the  majority  shall  be  permitted  to  guide  the  course  of  the  govern- 
ment only  under  controlling  checks  that  experience  has  shown  to  be 
necessary  to  secure  for  the  minority  its  share  of  the  benefit  to  the 
whole  people  that  a  popular  government  is  established  to  bestow. 
A  popular  government  is  not  a  government  of  a  majority,  by  a  ma- 
jority, for  a  majority  of  the  people.  It  is  a  government  of  the  whole 
people,  by  a  majority  of  the  whole  people  under  such  rules  and 
checks  as  will  secure  a  wise,  just,  and  beneficent  government  for 
all  the  people.  It  is  said  you  can  always  trust  the  people 
to  do  justice.  If  that  means  all  the  people  and  they  all  agree, 
you  can.  But  ordinarily  they  do  not  all  agree,  and  the  maxim  is 
interpreted  to  mean  that  you  can  always  trust  a  majority  of  the 
people.  This  is  not  invariably  true;  and  every  limitation  imposed 
by  the  people  upon  the  power  of  the  majority  in  their  constitutions 
is  an  admission  that  it  is  not  always  true.  No  honest,  clear-headed 
man,  however  great  a  lover  of  popular  government,  can  deny  that 


4  SPECIAL   MESSAGE. 

the  uiil>ti.ll'  I  of  the  majority  of  a  community  converted 

ito  law   i  too   would   sometimes  make  a  government 

!  and  crueL     Constitutions  are  checks  upon  the  hasty  action 

the  self-imposed  restraints  of  a  whole 
people  up  n  a  maj<  i  y  of  ti  em  to  secure  sober  action  and  a  respect 
W  the  rights  of  the  minority,  and  of  the  individual  in  his  relation 
to  other  individual-,  and  in  his  relation  to  the  whole  people  in  their 
char  i  state  or  government. 

The  <  '■•:  titulioTi  distributes  the  functions  of  government  into  three 
branches — the  Legislative,  to  make  the  laws;  the  executive,  to  execute 
them:  and  the  judicial,  to  decide  in  cases  arising  before  it  the  rights 
of  the  individual  as  between  him  and  others  and  as  between  him  and 
the  government.  This  division  of  government  into  three  separate 
branches  has  always  been  regarded  as  a  great  security  for  the  main- 
tenance of  free  institutions,  and  the  security  is  only  firm  and  assured 
when  the  judicial  branch  is  independent  and  impartial.  The  execu- 
tive and  legislative  branches  are  representative  of  the  majority  of  the 
>ple  which  elected  them  in  guiding  the  course  of  the  government 
within  the  limits  of  the  Constitution.  They  must  act  for  the 
whole  people,  of  course;  but  they  may  properly  follow,  and 
usually  ought  to  follow,  the  views  of  the  majority  which  elected 
them  in  respect  to  the  governmental  policy  best  adapted  to 
ire  the  welfare  of  the  whole  people.  But  the  judicial  branch  of 
the  Government  is  not  representative  of  a  majority  of  the  people  in 
any  such  sense,  even  if  the  mode  of-selecting  judges  is  by  popular 
election.  In  a  proper  sense,  judges  are  servants  of  the  people;  that 
i-.  they  are  doing  work  which  must  be  done  for  the  Government  and 
in  the  interest  of  all  the  people,  but  it  is  not  work  in  the  doing  of 
which  they  arc  to  follow  the  will  of  the  majority  except  as  that  is 
embodied  in  statutes  lawfully  enacted  according  to  constitutional 
limitations.  They  are  not  popular  representatives.  On  the  con- 
trary,  to  fill  their  office  properly,  they  must  be  independent.  They 
must  decide  every  question  which  comes  before  them  according  to 
law  and  justice.  If  this  question  is  between  individuals  they  will 
follow  the  statute,  or  the  unwritten  law  if  no  statute  applies,  and 
they  take  the  unwritten  law  growing  out  of  tradition  and  custom 
fn.in  previous  judicial  decisions.  If  a  statute  or  ordinance  affecting 
a  cause  before  them  is  not  lawfully  enacted,  because  it  violates  the 


SPECIAL  MESSAGE.  5 

constitution  adopted  by  the  people,  then  they  must  ignore  the  statute 
and  decide  the  question  as  if  the  statute  had  never  been  passed. 
This  power  is  a  judicial  power,  imposed  by  the  people  on  the  judges 
by  the  written  constitution.  In  early  days,  some  argued  that  the 
obligations  of  the  Constitution  operated  directly  on  the  conscience 
of  the  legislature  and  only  in  that  manner,  and  that  it  was  to  be  con- 
clusively presumed  that  whatever  was  done  by  the  legislature  was 
constitutional.  But  such  a  view  did  not  obtain  with  our  hard-headed, 
courageous,  and  far-sighted  statesmen  and  judges,  and  it  was  soon 
settled  that  it  was  the  duty  of  judges  in  cases  properly  arising 
before  them  to  apply  the  law  and  so  to  declare  what  was  the  law, 
and  that  if  what  purported  to  be  statutory  law  was  at  variance 
with  the  fundamental  law,  i.  e.,  the  Constitution,  the  seeming  statute 
was  not  law  at  all,  was  not  binding  on  the  courts,  the  individuals,  or 
any  branch  of  the  Government,  and  that  it  was  the  duty  of  the  judges 
so  to  decide.  This  power  conferred  on  the  judiciary  in  our  form  of 
government  is  unique  in  the  history  of  governments,  and  its  opera- 
tion has  attracted  and  deserved  the  admiration  and  commendation  of 
the  world.  It  gives  to  our  judiciary  a  position  higher,  stronger,  and 
more  responsible  than  that  of  the  judiciary  of  any  other  country, 
and  more  effectively  secures  adherence  to  the  fundamental  will  of  the 
people. 

What  I  have  said  has  been  to  little  purpose  if  it  has  not  shown  that 
judges  to  fulfill  their  functions  properly  in  our  popular  Government, 
must  be  more  independent  than  in  any  other  form  of  government,  and 
that  need  of  independence  is  greatest  where  the  individual  is  one 
litigant,  and  the  State,  guided  by  the  successful  and  governing 
majority,  is  the  other.  In  order  to  maintain  the  rights  of  the  minority 
and  the  individual  and  to  preserve  our  constitutional  balance  we 
must  have  judges  with  courage  to  decide  against  the  majority  when 
justice  and  law  require. 

By  the  recall  in  the  Arizona  constitution,  it  is  proposed  to  give 
to  the  majority  power  to  remove  arbitrarily,  and  without  delay, 
any  judge  who  may  have  the  courage  to  render  an  unpopular  de- 
cision. By  the  recall,  it  is  proposed  to  enable  a  minority  of  25  per 
cent  of  the  voters  of  the  district  or  State,  for  no  prescribed  cause, 
after  the  judge  has  been  in  office  six  months,  to  submit  the  question 
of  his  retention  in  office  to  the  electorate.    The  petitioning  minority 


G  BFECIAL  MESSAGE. 

say  on  the  ballol  what  they  can  against  him  in  200  words, 
■nd  he  must  defend  as  best  he  can  in  the  same  space.  Other  can- 
didate- are  permitted  to  present  themselves  and  have  their  names 
printed  on  the  ballot,  so  that  the  recall  is  not  based  solely  on  the 

!  i   i  i    i!  of  the  judge,  but  also  on  the  question  whether 

and  more  popular  candidate  has  been  found  to  unseat 
him.  Could  there  be  a  system  more  ingeniously  devised  to  subject 
judges  to  momentary  gusts  of  popular  passion  than  this? 
We  ran  not  be  blind  to  the  fact  that  often  an  intelligent 
i  respectable  electorate  may  be  so  roused  upon  an  issue 
that  it  will  visit  with  condemnation  the  decision  of  a  just 
judge,  though  exactly  in  accord  with  the  law  governing 
the  case,  merely  because  it  affects  unfavorably  their  contest. 
Controversies  over  elections,  labor  troubles,  racial  or  religious 
issues,  issues  as  to  the  construction  or  constitutionality  of 
liquor  laws,  criminal  trials  of  popular  or  unpopular  defendants, 
the  removal  of  county  seats,  suits  by  individuals  to  maintain 
their  constitutional  rights  in  obstruction  of  some  popular  im- 
provement— these  and  many  other  cases  could  be  cited  in  which 
a  majority  of  a  district  electorate  would  be  tempted  by  hasty  anger 
to  recall  a  conscientious  judge  if  the  opportunity  were  open  all  the 
time.  No  period  of  delay  is  interposed  for  the  abatement  of  popular 
feeling.  The  recall  is  devised  to  encourage  quick  action,  and  to 
lead  the  people  to  strike  while  the  iron  is  hot.  The  judge  is  treated 
as  the  instrument  and  servant  of  a  majority  of  the  people  and  subject 
to  their  momentary  will,  not  after  a  long  term  in  which  his  qualities 
as  a  judge  and  his  character  as  a  man  have  been  subjected  to  a  test 
of  all  the  varieties  of  judicial  work  and  duty  so  as  to  furnish  a 
proper  means  of  measuring  his  fitness  for  continuance  in  another 
term.  On  the  instant  of  an  unpopular  ruling,  while  the  spirit  of 
protest  has  not  had  time  to  cool  and  even  while  an  appeal  may  be 
pending  from  his  ruling  in  which  he  may  be  sustained,  he  is  to  be 
haled  before  the  electorate  as  a  tribunal,  with  no  judicial  hearing,  evi- 
dence,  or  defense,  and  thrown  out  of  office,  and  disgraced  for  life  be- 
cause  he  lias  Failed,  in  a  single  decision,  it  may  be,  to  satisfy  the  popu- 
lar demand.  Think  of  the  opportunity  such  a  system  would  give  to 
unscrupulous  political  bosses  in  control,  as  they  have  been  in  control 
not   only   of  conventions   but  elections!      Think   of   the  enormous 


SPECIAL   MESSAGE.  7 

power  for  evil  given  to  the  sensational,  muckraking  portion  of 
the  press  in  rousing  prejudice  against  a  just  judge  by  false  charges 
and  insinuations,  the  effect  of  which  in  the  short  period  of  an 
election  by  recall,  it  would  be  impossible  for  him  to  meet  and 
offset!  Supporters  of  such  a  system  seem  to  think  that  it 
will  work  only  in  the  interest  of  the  poor,  the  humble, 
the  weak  and  the  oppressed;  that  it  will  strike  down  only  the  judge 
who  is  supposed  to  favor  corporations  and  be  affected  by  the  corrupt- 
ing influence  of  the  rich.  Nothing  could  be  further  from  the  ultimate 
result.  The  motive  it  would  offer  to  unscrupulous  combinations  to 
seek  to  control  politics  in  order  to  control  the  judges  is  clear.  Those 
would  profit  by  the  recall  who  have  the  best  opportunity  of  rousing 
the  majority  of  the  people  to  action  on  a  sudden  impulse.  Are  they 
likely  to  be  the  wisest  or  the  best  people  in  a  community?  Do  they 
not  include  those  who  have  money  enough  to  employ  the  firebrands 
and  slanderers  in  a  community  and  the  stirrers-up  of  social  hate? 
Would  not  self-respecting  men  well  hesitate  to  accept  judicial  office 
with  such  a  sword  of  Damocles  hanging  over  them?  What  kind  of 
judgments  might  those  on  the  unpopular  side  expect  from  courts 
whose  judges  must  make  their  decisions  under  such  legalized  terror- 
ism? The  character  of  the  judges  would  deteriorate  to  that  of 
trimmers  and  time-servers,  and  independent  judicial  action  would 
be  a  thing  of  the  past.  As  the  possibilities  of  such  a  system  pass  in 
review,  is  it  too  much  to  characterize  it  as  one  which  will  destroy  the 
judiciary,  its  standing,  and  its  usefulness? 

The  argument  has  been  made  to  justify  the  judicial  recall  that 
it  is  only  carrying  out  the  principle  of  the  election  of  the  judges  by 
the  people.  The  appointment  by  the  Executive  is  by  the  representa- 
tive of  the  majority,  and  so  far  as  future  bias  is  concerned  there  is  no 
great  difference  between  the  appointment  and  the  election  of  judges. 
The  independence  of  the  judiciary  is  secured  rather  by  a  fixed  term 
and  fixed  and  irreducible  salary.  It  is  true  that  when  the  term  of 
judges  is  for  a  limited  number  of  years  and  reelection  is  necessary,  it 
has  been  thought  and  charged  sometimes  that  shortly  before  election 
in  cases  in  which  popular  interest  is  excited,  judges  have  leaned  in 
their  decisions  toward  the  popular  side. 

As  already  pointed  out,  however,  in  the  election  of  judges  for  a  long 
and  fixed  term  of  years,  the  fear  of  popular  prejudice  as  a  motive 
for  unjust  decisions  is  minimized  by  the  tenure  on  the  one  hand, 

448772 


8  SFECIAL  MESSAGE. 

while  (lie  opportunity  which  the  people  have,  calmly  to  consider  the 
work  of  a  judge  for  a  full  term  of  years  in  deciding  as  to  his  re- 
elect inn.  generally  insures  from  them  a  fair  and  reasonable  considera- 
tion of  his  qualities  as  a  judge.  While,  therefore,  there  have  been 
elected  judges  who  have  bowed  before  unjust  popular  prejudice,  or 
who  have  yielded  to  the  power  of  political  bosses  in  their  decisions, 
I  am  convinced  that  these  are  exceptional,  and  that,  on  the  whole, 
elected  judges  have  made  a  great  American  judiciary.  But  the  suc- 
s  of  an  elective  judiciary  certainly  furnishes  no  reason  for  so 
changing  the  system  as  to  take  away  the  very  safeguards  which  have 
made  it  successful. 

Attempt  is  made  to  defend  the  principle  of  judicial  recall  by  ref- 
erence to  States  in  which  judges  are  said  to  have  shown  themselves  to 
be  under  corrupt  corporate  influence  and  in  which  it  is  claimed  that 
nothing  but  a  desperate  remedy  will  suffice.  If  the  political  control 
in  such  States  is  sufficiently  wrested  from  corrupting  corporations  to 
permit  the  enactment  of  a  radical  constitutional  amendment  like  that 
of  judicial  recall,  it  would  seem  possible  to  make  provision  in  its  stead 
for  an  effective  remedy  by  impeachment  in  which  the  cumbrous  fea- 
tures of  the  present  remedy  might  be  avoided,  but  the  opportunity 
for  judicial  hearing  and  defense  before  an  impartial  tribunal  might 
be  retained.  Real  reforms  are  not  to  be  effected  by  patent  short  cuts 
or  by  abolishing  those  requirements  which  the  experience  of  ages  has 
shown  to  be  essential  in  dealing  justly  with  everyone.  Such  inno- 
vations are  certain  in  the  long  run  to  plague  the  inventor  or  first  user 
and  will  come  readily  to  the  hand  of  the  enemies  and  corrupters  of 
society  after  the  passing  of  the  just  popular  indignation  that 
prompted  their  adoption. 

Again  judicial  recall  is  advocated  on  the  ground  that  it  will  bring 
the  judges  more  into  sympathy  with  the  popular  wall  and  the  progress 
of  ideas  among  the  people.  It  is  said  that  now  judges  are  out  of  touch 
with  the  movement  toward  a  wider  democracy  and  a  greater  control 
of  governmental  agencies  in  the  interest  and  for  the  benefit  of  the 
people.  The  righteous  and  just  course  for  a  judge  to  pursue  is  ordi- 
narily li  sed  by  statute  or  clear  principles  of  law,  and  the  cases  in  which 
his  judgment  may  be  affected  by  his  political,  economic,  or  social 
views  are  infrequent.     But  even  in  such  cases,  judges  are  not  removed 


SPECIAL  MESSAGE.  9 

from  the  people's  influence.  Surround  the  judiciary  with  all  the 
safeguards  possible,  create  judges  by  appointment,  make  their  tenure 
for  life,  forbid  diminution  of  salary  during  their  term,  and  still 
it  is  impossible  to  prevent  the  influence  of  popular  opinion  from 
coloring  judgments  in  the  long  run.  Judges  are  men,  intelligent, 
sympathetic  men,  patriotic  men,  and  in  those  fields  of  the  law 
in  which  the  personal  equation  unavoidably  plays  a  part, 
there  will  be  found  a  response  to  sober  popular  opinion 
as  it  changes  to  meet  the  exigency  of  social,  political,  and 
economic  changes.  Indeed  this  should  be  so.  Individual  instances 
of  a  hidebound  and  retrograde  conservatism  on  the  part  of  courts  in 
decisions  which  turn  on  the  individual  economic  or  sociological  views 
of  the  judges  may  be  pointed  out;  but  they  are  not  many,  and  do  not 
call  for  radical  action.  In  treating  of  courts  we  are  dealing  with  a 
human  machine,  liable  like  all  the  inventions  of  man  to  err,  but  we 
are  dealing  with  a  human  institution  that  likens  itself  to  a  divine  in- 
stitution because  it  seeks  and  preserves  justice.  It  has  been  the  corner 
stone  of  our  gloriously  free  government  in  which  the  rights  of  the 
individual  and  of  the  minority  have  been  preserved,  while  govern- 
mental action  of  the  majority  has  lost  nothing  of  beneficent  progress, 
efficacy,  and  directness.  This  balance  was  planned  in  the  Constitution 
by  its  framers  and  has  been  maintained  by  our  independent  judiciary. 

Precedents  are  cited  from  State  constitutions  said  to  be  equivalent 
to  a  popular  recall.  In  some,  judges  are  removable  by  a  vote  of  both 
houses  of  the  legislature.  This  is  a  mere  adoption  of  the  English 
address  of  Parliament  to  the  Crown  for  the  removal  of  judges.  It  is 
similar  to  impeachment  in  that  a  form  of  hearing  is  always  granted. 
Such  a  provision  forms  no  precedent  for  a  popular  recall  without 
adequate  hearing  and  defense,  and  with  new  candidates  to  contest 
the  election. 

It  is  said  the  recall  will  be  rarely  used.  If  so,  it  will  be  rarely 
needed.  Then  why  adopt  a  system  so  full  of  danger?  But  it  is  a 
mistake  to  suppose  that  such  a  powerful  lever  for  influencing  judi- 
cial decisions  and  such  an  opportunity  for  vengeance  because  of  ad- 
verse ones  will  be  allowed  to  remain  unused. 

But  it  is  said  that  the  people  of  Arizona  are  to  become  an  inde- 
pendent State  when  created,  and  even  if  we  strike  out  judicial  recall 
now,  they  can  reincorporate  it  in  their  constitution  after  statehood.    • 


10  SPECIAL.   MESSAGE. 

To  this  T  would  answer  that  in  dealing  with  the  courts,  which  are 
the  corner  stone  of  good  government,  and  in  which  not  only  the  voters, 
but  the  oonvoters  and  nonresidents,  have  a  deep  interest  as  a  security 
for  their  rights  of  life,  liberty,  and  property,  no  matter  what  the 
future  action  of  the  state  may  be,  it  is  necessary  for  the  authority 
which  is  primarily  responsible  for  its  creation  to  assert  in  no  doubt- 
ful tones  the  necessity  for  an  independent  and  untrammeled  judiciary. 

Wm.  H.  Taft. 

The  White  House, 

August  15,  1911. 

o 


UNIVERSITY  OF  CALIFORNIA.  LOS  ANGELES 

THE  UNIVERSITY  LIBRARY 

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8225  U.S. President, 
'495  Special  message. 


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